Spousal Election: Taking Against the Will

Pennsylvania law gives a surviving spouse the right to reject the provisions of the decedent's will and instead claim a one-third share of the property subject to the elective share (20 Pa.C.S. § 2203). This is one of the most consequential decisions in probate, and one of the most misunderstood.

The Basic Right: § 2203

Regardless of what the will says, the surviving spouse can elect to take one-third of certain property. This means a will that leaves the surviving spouse nothing (or $1) doesn't work the way the testator intended. The spouse can override it. The election is filed with the Clerk of the Orphans' Court , with a copy mailed to the personal representative or their attorney.

What "Property" Is Subject to the Election?

This is where most people (and some attorneys) get it wrong. The elective share is not one-third of the probate estate . Under § 2203(a), the surviving spouse is entitled to one-third of the following:

• Property passing by will or intestacy (§ 2203(a)(1))
• Retained-control conveyances: property conveyed during the marriage where the decedent retained the use of the property, an interest in its income, or a power to withdraw income; the spouse gets the income or use for the spouse's remaining life (§ 2203(a)(2))
• Revocable conveyances: property conveyed during the decedent's lifetime where the decedent retained the power to revoke, consume, invade, or dispose of the principal for his own benefit (§ 2203(a)(3))
• Joint survivorship property: property conveyed during the marriage to the decedent and another with right of survivorship, to the extent of any interest the decedent could unilaterally convey at death (§ 2203(a)(4))
• Annuity contracts: survivorship rights conveyed to an annuity beneficiary where the decedent purchased the annuity during the marriage and was receiving payments at death (§ 2203(a)(5))
• One-year conveyances: property conveyed during the marriage and within one year of death, to the extent the aggregate to each donee exceeds $3,000 (§ 2203(a)(6))

The statute is designed to prevent a decedent from gifting, transferring, or retitling assets to defeat the spouse's election. The "not subject to election" exclusions are in § 2203(b) and include conveyances made with the surviving spouse's consent, life insurance proceeds payable to named beneficiaries, benefits under broad-based employer plans (pension, profit-sharing, etc.), and property passing by the exercise of a power of appointment granted by someone other than the decedent.

The Offset: § 2204: What the Spouse Must Give Up

A spouse who elects against the will doesn't get the elective share on top of what the will provides. Section 2204 requires the electing spouse to release :

• Any provision in the will in favor of the spouse
• The spouse's interest in property passing by intestacy
• The family exemption ($3,500 under § 3121), though the spouse can still claim it if the estate is insufficient

This means the election is a trade : the spouse gives up what the will provides and takes one-third instead. The math only makes sense if one-third of the property subject to election is more than what the will leaves the spouse. In many estates, it isn't, which is why the decision to elect requires careful analysis, not a reflexive filing.

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When Does the Election Make Sense?

The spousal election is a strategic decision, not an emotional one. It typically makes sense when:

• The will leaves the spouse substantially less than one-third of the available property: common in blended family situations where the decedent left most assets to children from a prior marriage
• The decedent disinherited the spouse entirely , the election guarantees at least one-third
• The will creates a trust for the spouse's benefit that is too restrictive: income-only, no invasion rights, hostile trustee . One-third outright may be worth more than a lifetime interest in a controlled trust.

It typically does not make sense when:

• The will already provides more than one-third of the available property
• Most assets pass outside the probate estate (life insurance, retirement accounts, joint accounts) and are therefore not subject to the election
• The will creates a trust that provides more total value than one-third outright: consider the income stream over the spouse's life expectancy
• The election would trigger litigation with the decedent's children that costs more than the marginal benefit

Waiver of the Elective Share

The surviving spouse can waive the right to elect, but only through a properly executed prenuptial or postnuptial agreement under 23 Pa.C.S. § 3106. The waiver must be knowing, voluntary, and made with reasonable disclosure of assets. A prenup that says "each party waives all rights in the other's estate" (if properly executed) eliminates the elective share entirely.

This is the primary reason estate planning attorneys recommend prenuptial agreements for second marriages. Without one, the surviving spouse retains the right to take one-third regardless of what the will says, and the children from the first marriage may receive substantially less than the decedent intended.

Statutory content on this page was last verified against Pennsylvania statutes (20 Pa.C.S.; 72 P.S. Art. XXI): February 2026 . If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.